ZN (Afghanistan) & Anor v Secretary of State for the Home Department

Factual and Procedural Background

These appeals arise from applications for costs following consent orders whereby the Appellants withdrew their appeals after the Respondent, the Secretary of State, agreed to consider their asylum claims within the United Kingdom. The appeals concerned decisions by the Secretary of State to remove the Appellants to other European Union Member States under Regulation 604/2013 ("Dublin III"), which governs responsibility for examining international protection applications.

The first Appellant, referred to as ZN, is an Afghan national who fled Afghanistan in 2014 due to fear of ill-treatment by the Taliban. After initially arriving and being detained in Bulgaria, where he alleges mistreatment and denied legal representation, his fingerprints were recorded in the Eurodac system. ZN subsequently entered the UK clandestinely and claimed asylum. An age assessment later determined he was an adult. The Secretary of State requested his return to Bulgaria under Dublin III, certified his asylum claim on third country grounds, and issued removal directions. ZN challenged these decisions through judicial review, which was refused permission and certified as totally without merit. The transfer deadline was miscalculated by the Respondent, leading to ZN's release and eventual withdrawal of his appeal by consent, with costs to be determined.

The second Appellant, KA, is an Iraqi national who fled due to conflict involving Islamic State militants. He initially claimed asylum in Austria, where he was detained briefly and fingerprinted. Due to poor living conditions in Austria, KA left and entered the UK illegally, where he was detained and claimed asylum. Austria accepted responsibility for KA under Dublin III, and transfer directions were issued. KA challenged removal on Article 3 ECHR grounds and detention via judicial review, which was refused. A stay on removal was ordered pending a related High Court judgment. The Respondent later withdrew the third country certificate, and KA agreed to withdraw proceedings by consent, reserving the issue of costs.

The applications for costs stem from these consent orders following withdrawal of appeals, with the issue referred to the Full Court due to the absence of previous authority on the point of principle involved.

Legal Issues Presented

1. Whether the Appellants are entitled to an order for costs following the withdrawal of their appeals by consent after the Respondent agreed to reconsider their asylum claims in the UK.
2. How the principles governing costs in judicial review proceedings apply when claims are settled or withdrawn without a substantive hearing.
3. The relevance and weight to be given to the fact that the Appellants are publicly funded by legal aid when deciding costs orders.
4. The application of the Dublin III Regulation and associated case law concerning third country certifications and removals in the context of costs.

Arguments of the Parties

Appellants' Arguments

• The Appellants contend they have achieved the practical outcome sought by their proceedings, namely, that their asylum and human rights claims will be considered in the UK rather than through removal to another EU Member State.
• They argue that "success" for costs purposes should be assessed in practical, real-life terms rather than purely technical legal terms.
• They submit that the Respondent’s withdrawal of third country certifications and agreement to reconsider claims in the UK amounts to success entitling them to costs.
• They emphasize the adverse impact on publicly funded legal practices if costs are not awarded, citing Lord Hope’s observations in Re Appeals by Governing Body of JFS regarding the importance of costs recovery for legal aid solicitors and the sustainability of public funding.
• They argue that the courts should take into account the realities of legal aid funding and the public interest in effective access to justice when exercising discretion on costs.

Respondent's Arguments

• The Respondent maintains that the Appellants have not been legally successful, as their appeals would have been dismissed on the merits if fully heard.
• She argues that the withdrawal of third country certifications resulted from administrative failures and timing issues rather than the merits of the legal claims, thus breaking the causal link necessary for costs to follow success.
• The Respondent relies on the principle that costs orders should be causally connected to the merits of the pleaded challenge and the conduct of the litigation itself, not extraneous administrative errors.
• She submits that the legal aid status of the Appellants should not affect the exercise of discretion on costs, citing statutory provisions prohibiting differential treatment based on funding and consistent case law.
• She distinguishes observations by Lord Hope in JFS as relating to a different context (cost capping orders) and maintains that the principles governing costs awards remain unaffected by the source of funding.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
R (on the application of M) v Croydon London Borough Council [2012] EWCA Civ 595	General principles on costs discretion in judicial review proceedings, including that costs normally follow the event and the basis of funding rarely affects costs awards.	Used as the foundational authority for analyzing costs principles, including the three general principles articulated by Lord Neuberger MR and the approach to costs where cases settle or claims are withdrawn.
BCT Software Solutions Ltd v C Brewer & Sons Ltd [2003] EWCA Civ 939	Limits on making costs orders where no trial or judgment has occurred and the importance of only awarding costs when clearly justified.	Supported the court's caution in making costs orders absent a clear basis and where facts are undetermined.
R (on the application of Tesfay) v Secretary of State for the Home Department [2016] EWCA Civ 415	Application of costs principles in Dublin III cases where human rights certifications were withdrawn and the assessment of success for costs purposes.	Distinguished between claimants whose cases were vindicated on legal grounds and those whose claims were withdrawn for other reasons; guided the court in assessing success and costs entitlement.
R (on the application of EM (Eritrea)) v Secretary of State for the Home Department [2014] UKSC 12	Determined that removal to Italy posed a real risk of ill-treatment contrary to Article 3 ECHR, vindicating claimants' legal positions.	Referenced as a key authority underpinning the success of claimants in related Dublin III cases and costs awards.
R (on the application of Abdulkadir & another) v Secretary of State for the Home Department [2016] EWHC 1504 (Admin)	Held that certain Article 3 claims to prevent removal to Austria were bound to fail and certified such claims as lawful.	Used to contextualize KA’s case and the lawfulness of the third country certification challenged.
Re Appeals by Governing Body of JFS and others [2009] UKSC 1	Observations on the impact of costs orders on publicly funded litigants and the importance of costs recovery for legal aid practitioners.	Cited in submissions and judicial analysis regarding the relevance of legal aid funding to costs discretion, with differing judicial interpretations.
R (on the application of Bahta) v Secretary of State for the Home Department [2011] EWCA Civ 895	Costs principles in public law cases, including the approach to awarding costs when claims are partially successful or settled.	Referenced for guidance on costs discretion and the importance of analyzing success rather than rigidly applying rules.
R (on the application of UNISON) v Lord Chancellor [2017] UKSC 51	Constitutional right of access to courts as inherent in the rule of law.	Emphasized the public interest in access to justice, underpinning considerations about costs and legal aid funding.
R (on the application of Heshmati) v London Borough of Wandsworth (1997, unreported)	Confirmed that costs should follow the event even when both parties are publicly funded, consistent with statutory provisions.	Supported the principle that legal aid status does not exempt a party from costs liability nor entitle automatic costs recovery.
Blatcher and another v Heaysman and another [1960] 1 WLR 663	Statutory interpretation of legal aid provisions concerning costs and the discretion of the court.	Historical authority confirming that costs discretion applies irrespective of legal aid status.
R (on the application of Davies) v Birmingham Deputy Coroner [2004] EWCA Civ 207	Costs rules do not consider the financial welfare of a party's lawyers as relevant in costs orders.	Supported the view that the remuneration of legal aid lawyers is not a legitimate consideration in costs decisions.
R (on the application of Gourlay) v Parole Board [2017] EWCA Civ 1003	Reaffirmed that courts must ignore the fact that a party seeking costs is publicly funded.	Used to support the proposition that legal aid status is generally irrelevant to costs discretion.
R (on the application of Sino) v Secretary of State for the Home Department [2016] EWHC 803 (Admin)	Recognized the risk that publicly funded legal practices may become unsustainable without costs recovery and endorsed taking this into account.	Endorsed by the court as a relevant factor in exercising costs discretion to promote effective access to justice.
RL and others v London Borough of Croydon [2018] EWCA Civ 726	Considered whether it was tolerably clear that claimants would have won and the relevance of legal aid status in costs awards.	Referenced for judicial reluctance to award costs without a principled basis despite public funding considerations.

Court's Reasoning and Analysis

The Court considered the general costs principles as set out in CPR Part 44 and the leading authority of R (on the application of M) v Croydon London Borough Council, emphasizing that costs orders are discretionary and normally follow the event. The Court noted that where cases settle or are withdrawn by consent, determining success for costs purposes requires careful analysis of whether the claimant has achieved the relief sought and whether there is a causal link between the litigation and the outcome.

The Court analyzed the facts of the Appellants' cases and concluded that the appeals would have been dismissed on their merits had they proceeded. The withdrawal of third country certifications and the Respondent's agreement to reconsider claims in the UK resulted primarily from administrative failures and timing issues extrinsic to the litigation, breaking the causal link necessary for awarding costs to the Appellants.

Regarding the Appellants’ legal aid status, the Court acknowledged the important public interest in effective access to justice and the financial realities facing publicly funded legal practices. It recognized the observations in JFS and Sino about the impact of costs orders on legal aid practitioners and the desirability of courts considering this factor as part of their discretion.

However, the Court distinguished this from the principle that legal aid status should not generally alter the application of costs rules. It held that the funding source is not a determinative factor and that costs discretion must be exercised on principled grounds based on the merits and conduct of the litigation. The Court rejected the submission that the Appellants' legal aid status alone justified awarding costs where there was no legal success.

The Court further noted differing judicial views within the panel on the extent to which legal aid considerations should influence costs discretion but agreed on the ultimate refusal of the Appellants’ applications for costs on the facts presented.

Holding and Implications

The Court REFUSED the Appellants' applications for costs.

The direct effect of this decision is that the Appellants will not recover their costs from the Respondent despite the withdrawal of their appeals by consent. The Court emphasized that costs awards must be grounded in a principled analysis of legal success and causation, not merely the practical outcome or administrative failings. Although the Court acknowledged the importance of legal aid funding considerations, it held that these do not override the fundamental principles governing costs discretion.

No new precedent was established beyond clarifying the application of existing costs principles in the context of Dublin III removals and legal aid funding. The decision underscores the necessity for claimants to demonstrate legal success and a causal connection with incurred costs to obtain costs orders, even in public law and judicial review proceedings involving publicly funded parties.